In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-18-00215-CV
____________________
CITY OF CONROE, Appellant
V.
TIFFANY THOMAS, INDIVIDUALLY AND AS NEXT FRIEND OF C.C.,
A MINOR, C.C., A MINOR, AND EDWARD CALDWELL,
INDIVIDUALLY, Appellees
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 17-06-08026-CV
__________________________________________________________________
MEMORANDUM OPINION
Appellant, the City of Conroe (“the City”), brings this interlocutory appeal
from the trial court’s order denying its plea to the jurisdiction. See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). In three issues, the City
argues that the trial court erred in denying its plea to the jurisdiction based on
governmental immunity because the appellees failed to demonstrate that the City
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was grossly negligent as required by the Texas Recreational Use Statute. See id. §
75.002(f) (West 2017). We reverse the trial court’s order denying the City’s plea to
the jurisdiction and render judgment dismissing the appellees’ claims for lack of
subject matter jurisdiction.
Background
In June 2017, the appellees, Tiffany Thomas, individually and as next friend
of C.C., a minor, C.C., a minor,1 and Edward Caldwell, individually, sued the City
for negligence, claiming that a camp supervisor, who was working at a summer day
camp operated by the City and who was performing acts within the course and scope
of his employment for the City, was negligent and proximately caused C.C.’s eye
injury. In their petition, the appellees alleged that the camp supervisor was
supervising the children in sports activities inside a portable structure when the
supervisor had the children play baseball with a makeshift bat. According to the
appellees, the supervisor swung the makeshift bat and hit C.C., causing C.C. to lose
sight in his left eye. The appellees maintained that the City is vicariously liable for
the supervisor’s negligence.
1
This case involves two minor plaintiffs who are brothers and who have the
same initials, but only one of the minors was physically injured as a result of the
City’s alleged negligence. When referring to C.C. in the body of this opinion, we are
referencing the brother who was injured.
2
The City filed a plea to the jurisdiction asserting that the appellees’ claims fail
because (1) the recreational use statute requires plaintiffs to prove that the City
breached its duty of care by showing that the City acted with gross negligence, and
(2) the City’s immunity from suit is not waived because the supervisor was not
grossly negligent. According to the City, the undisputed evidence establishes that
the informal softball game associated with the City’s free summer day camp falls
within the recreational use statute, which provides that a governmental unit does not
owe a person who is engaging in recreation on premises occupied by the
governmental unit a greater degree of care than is owed to a trespasser. The City
argued that because its day camp qualifies as “recreation” under the recreational use
statute, it only owes a duty of care not to injure a person through gross negligence.
The City asserts that it is entitled to immunity because its employee who was
supervising the children was negligent, but not grossly negligent, and because the
City did not depart from the ordinary standard of care to such an extent that it created
an extreme degree of risk of harming the plaintiff.
The City further argued that the fact that the ball game was moved temporarily
to an indoor location due to the weather did not remove the activity from the
protection of the statute, because the statute’s definition of “premises” includes
buildings and structures located on the land. According to the City, the statute’s
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definition of “recreation” includes “camping[]” and “any other activity associated
with enjoying nature or the outdoors[,]” and the purpose of the City’s day camp is
to provide recreation and a “‘fun place where day campers can collaborate and grow
with an optimistic outlook on life by participating in camp activities and enjoying
the beauty of Conroe and its surrounding environment.’”
The appellees filed an amended petition adding a gross negligence claim
against the City. The appellees also filed a response to the City’s plea to the
jurisdiction, arguing that the case does not fall under the recreational use statute,
because under the statute, the City’s camp is not considered “camping” and playing
baseball inside a classroom is not “recreation” because it is not an activity associated
with enjoying nature or the outdoors. According to the appellees, there is a material
fact question regarding whether the indoor ball game at the junior high school is an
activity that qualified as “recreation” under the statute. The appellees argued that
because the indoor ball game does not fall under the type of activities that are defined
as “recreation,” C.C. was not a trespasser when he was injured at the City’s camp.
The appellees further argued that the trial court should deny the City’s plea to the
jurisdiction, declare that the activity that caused C.C.’s eye injury is not considered
“camping” under the statute, and allow the case to be tried on negligence and gross
negligence theories.
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In the City’s reply to the appellees’ response to its plea to the jurisdiction, the
City argued that its day camp falls under the activity of “camping” because it is
related to enjoying nature and the outdoors, and the City further argued that informal
softball games are considered “recreation” under the statute. According to the City,
the trial court should grant its plea to the jurisdiction because the appellees’ gross
negligence claim is refuted by the evidence.
The record shows that the trial court denied the City’s plea to the jurisdiction
and found that the activity during which C.C. suffered his personal injury was not
“camping” or a “recreational use” for purposes of the statute. The City filed this
interlocutory appeal.
Standard of Review
Sovereign immunity protects the state from lawsuits for money damages and
deprives a trial court of subject matter jurisdiction unless the state consents to suit.
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
Governmental immunity operates like sovereign immunity to afford similar
protections to subdivisions of the state, including cities. Id. A city may raise its
immunity from suit in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). We review a trial court’s ruling on
a plea to the jurisdiction de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).
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When a plea to the jurisdiction challenges the existence of jurisdictional facts,
the trial court may consider relevant evidence and is required to do so when
necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227.
When evidence is submitted that implicates the merits of the case, the trial court
reviews the relevant evidence to determine whether a fact issue exists. Id. This
standard of review generally mirrors the summary judgment standard under Texas
Rule of Civil Procedure 166a(c), as it places the burden on the governmental unit to
demonstrate that the trial court lacks subject matter jurisdiction. Id. at 228; see also
Tex. R. Civ. P. 166a(c). If the governmental unit meets its initial burden, the burden
then shifts to the plaintiff to show that a disputed material fact exists regarding the
jurisdictional issue. Miranda, 133 S.W.3d at 228. We take as true all evidence that
is favorable to the plaintiff and indulge every reasonable inference and resolve any
doubts in the plaintiff’s favor. Id. If the evidence creates a fact question regarding
the jurisdictional issue, the trial court cannot grant the plea because fact questions
must be resolved by the finder of fact, but if the relevant undisputed evidence negates
jurisdiction, the trial must grant the plea. Id. at 227-28.
Applicable Law
The Legislature has provided a limited waiver of the state’s immunity from
suit as to certain tort claims under the Texas Tort Claims Act (“TTCA”). State v.
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Shumake, 199 S.W.3d 279, 283 (Tex. 2006); see Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.001-.109 (West 2011 & Supp. 2017). Specifically, section 101.021 of the
TTCA waives governmental immunity when a plaintiff’s injury is caused by (1) the
negligent operation of a motor-driven vehicle or motor-driven equipment; or (2) the
negligent use of tangible real or personal property. Tex. Civ. Prac. & Rem. Code
Ann. §§ 101.021, 101.025 (West 2011); Miranda, 133 S.W.3d at 225. To state a
cause of action under the TTCA for negligent use, the plaintiff must allege facts
showing that the employee’s negligence was the proximate cause of the injuries and
that the negligent conduct involved the use of tangible personal property. McBride
v. TDCJ-ID, 964 S.W.2d 18, 22 (Tex. App.—Tyler 1997, no pet.). Section 101.058
of the TTCA modifies a governmental unit’s waiver of immunity from suit by
limiting the liability of a governmental unit in cases in which the governmental unit
would be liable under the TTCA, and under such circumstances controlled by the
recreational use statute. Tex. Civ. Prac. & Rem. Code Ann. § 101.058 (West 2011);
see Miranda, 133 S.W.3d at 225.
“The recreational use statute recognizes that landowners or occupiers, who
open their property to the public for recreational purposes, provide a public benefit.”
Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007). To
encourage this use, the statute limits the liability of property owners who give
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permission to the public to enter the premises for recreation. Id.; Shumake, 199
S.W.3d at 284. The statute “absolves property owners of liability for injuries to
others using the property for recreation so long as the property owner does not
engage in grossly negligent conduct or act with malicious intent or in bad faith.” City
of Bellmead v. Torres, 89 S.W.3d 611, 612 (Tex. 2002). The recreational use statute
provides that if a person enters premises owned, operated, or maintained by a
governmental unit and engages in recreation on the premises, the governmental unit
does not owe the person a greater degree of care than is owed to a trespasser. Tex.
Civ. Prac. & Rem. Code Ann. § 75.002(f) (West 2017); see Flynn, 228 S.W.3d at
658, 660. Under the statute, a governmental unit only owes a duty to refrain from
injuring a trespasser willfully, wantonly, or through gross negligence. Tex. Civ.
Prac. & Rem. Code Ann. § 75.007(b) (West Supp. 2017). Thus, a governmental unit
waives sovereign immunity from suit for a plaintiff’s injuries under the TTCA and
the recreational use statute only if the governmental unit acted with gross negligence.
Miranda, 133 S.W.3d at 225.
The term “recreation” is defined as an activity such as:
(A) hunting;
(B) fishing;
(C) swimming;
(D) boating;
(E) camping;
(F) picnicking;
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(G) hiking;
(H) pleasure driving, including off-road motorcycling and off-road
automobile driving and the use of all-terrain vehicles and
recreational off-highway vehicles;
(I) nature study, including bird-watching;
(J) cave exploration;
(K) waterskiing and other water sports;
(L) any other activity associated with enjoying nature or the
outdoors;
(M) bicycling and mountain biking;
(N) disc golf;
(O) on-leash and off-leash walking of dogs; or
(P) radio control flying and related activities.
Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3) (West 2017). In determining whether
an activity is “recreation” for purposes of the statute, the relevant inquiry is what the
plaintiff was doing when he was injured. Torres, 89 S.W.3d at 614. The statute’s list
of recreational activities is not exhaustive, and the term “recreation” expressly
includes “any other activity associated with enjoying nature and the outdoors[.]”
Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(L); Torres, 89 S.W.3d at 615. While
the statute does not apply to competitive sporting events or spectators, it does apply
to informal ball games associated with enjoying nature and the outdoors. See Univ.
of Tex. at Arlington v. Williams, 459 S.W.3d 48, 57 (Tex. 2015) (plurality op.)
(holding that the recreational use statute does not apply to competitive sporting
events or spectators); Univ. of Tex. Health Science Ctr. at Houston v. Garcia, 346
S.W.3d 220, 225-26 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (concluding
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that playing sand volleyball on an outdoor court is a recreational activity within the
meaning of the statute).
The statute also includes indoor recreational activities that are conducted
inside buildings and structures located on the governmental unit’s property. See Tex.
Civ. Prac. & Rem. Code Ann. § 75.001(2) (West 2017); Torres, 89 S.W.3d at 615.
Under the recreational use statute, the definition of “premises” includes, among
other things, land and the buildings and structures attached to or located on the land.
Tex. Civ. Prac. & Rem. Code Ann. § 75.001(2). Thus, a plaintiff’s claim for injuries
that are sustained while engaging in indoor recreation on the governmental unit’s
premises falls within the purview of the statute. See City of Plano v. Homoky, 294
S.W.3d 809, 816-17 (Tex. App.—Dallas 2009, no pet.) (concluding that injuries to
plaintiff were sustained when she tripped and fell inside a clubhouse after playing
golf were related to the activity of playing golf).
ANALYSIS
In issue one, the City argues that the indoor softball game constitutes
“recreation” under the recreational use statute. The recreational use statute applies if
C.C. was engaged in “recreation” on the City’s premises at the time of his injury.
See Tex. Civ. Prac & Rem. Code Ann. § 75.002(f). It is undisputed that C.C. was
injured in a portable building or structure located on land owned by the City. Thus,
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we conclude that C.C. was injured on the City’s “premises.” See id. § 75.001(2);
Torres, 89 S.W.3d at 613-14.
The record shows that when C.C. was injured, he was participating in a free
summer day camp operated by the City, and that the purpose of the camp was to
offer campers a safe and fun place to participate in camp activities and to enjoy the
beauty of Conroe and its surrounding environment. The evidence established that
C.C. was injured while playing a ball game inside a portable building, and the ball
game was conducted indoors because it was “wet and sloppy” on the field. The
evidence further established that the game was not an organized athletic event, but
merely a game played at day camp to entertain the campers and have them interact.
Based on this record, we hold that C.C. was playing a recreational ball game
during a summer day camp that was associated with enjoying nature and the
outdoors, and that he was not participating in a competitive sporting event. See Tex.
Civ. Prac. & Rem. Code Ann. § 75.001(3)(L); Williams, 459 S.W.3d at 57; Garcia,
346 S.W.3d at 225-26. The fact that the camp supervisor conducted the ball game
indoors due to weather conditions does not remove the recreational activity from the
purview of the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 75.001(2); Torres,
89 S.W.3d at 615; Homoky, 294 S.W.3d at 816-17. Under these facts, we conclude
that when C.C. was injured he was engaged in “recreation” for purposes of the
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statute, and the recreational use statute therefore applies to the appellees’ claims. See
Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(L). We sustain issue one.
In issue two, the City argues that the term “camping” in the recreational use
statute includes its day camp, which the City contends it provided for recreational
purposes for children to participate in camp activities and enjoy the beauty of Conroe
and its surrounding environment. Having already concluded that the recreational use
statute applies to the appellees’ claims, we need not address the City’s second issue,
as it would not result in greater relief. See Tex. R. App. P. 47.1.
In issue three, the City argues that it presented evidence refuting gross
negligence and that it is entitled to dismissal with prejudice. Because we have
concluded that the recreational use statute applies to the appellees’ claims, the City
owed C.C. the duty owed to a trespasser. See Tex. Civ. Prac. & Rem. Code Ann. §
75.002(f). A premises owner owes a trespasser the limited duty “not to injure that
person willfully, wantonly, or through gross negligence.” Miranda, 133 S.W.3d at
225. Gross negligence is an “act or omission involving subjective awareness of an
extreme degree of risk, indicating conscious indifference to the rights, safety, or
welfare of others.” Shumake, 199 S.W.3d at 287. “Gross negligence requires that the
landowner be subjectively aware of, and consciously indifferent to, an extreme risk
of harm.” Id. at 288. “[W]hat separates ordinary negligence from gross negligence
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is the defendant’s state of mind; in other words, the plaintiff must show that the
defendant knew about the peril, but his acts or omissions demonstrate that he did not
care.” Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246-47 (Tex. 1999). This
definition of gross negligence applies to the recreational use statute. See Miranda,
133 S.W.3d at 225.
In their amended petition, appellees claim that the City acted with conscious
disregard for the safety and welfare of its camp participants by conducting a
competitive ball game indoors and allowing the children to run around, swing
makeshift bats, throw and hit dodge balls, and play without helmets.
The appellees pleaded that the City was aware that the game was competitive with
an extreme degree of risk of serious injury, but nevertheless proceeded with
conscious indifference to the rights, safety, and welfare of C.C. The appellees did
not present any evidence showing that the City’s acts or omissions demonstrate that
the City was indifferent to the consequences to C.C. of a known extreme risk of
danger. See Miranda, 133 S.W.3d at 232.
The City contends that the evidence refutes gross negligence. The City
presented the affidavit of City supervisor Scott Perry, who averred that the purpose
of the City’s summer camp was to offer a safe and fun place where campers could
participate in camp activities. According to Perry, the counselor, who was
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supervising the children when C.C. was injured, had organized an indoor softball
game because it was raining outside, and the game included a padded bat and dodge
balls. Perry averred that the game was not an organized athletic event, but merely a
day camp game played to be interactive and entertaining. Perry averred that prior to
the incident at issue, he was not aware of any safety complaints concerning the
counselor who supervised the indoor softball game, nor was Perry aware of any
injury ever occurring during this type of camp activity. Construing the appellees’
pleadings liberally, we hold that the appellees have not alleged any act or omission
by the City that satisfies the pleading requirements of gross negligence. See Homoky,
294 S.W.3d at 817. We conclude that the appellees have failed to raise a fact issue
regarding gross negligence. See Miranda, 133 S.W.3d at 232. We sustain issue three.
Conclusion
Having sustained the City’s first and third issues, we hold that the appellees
have failed to meet the requirements for a limited waiver of governmental immunity
under the TTCA and the recreational use statute. Accordingly, the trial court lacked
subject matter jurisdiction. We conclude that the trial court erred in denying the
City’s plea to the jurisdiction. We reverse the trial court’s order denying the City’s
plea and render judgment dismissing the appellees’ claims for lack of subject matter
jurisdiction.
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REVERSED AND RENDERED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on August 13, 2018
Opinion Delivered October 11, 2018
Before McKeithen, C.J., Kreger and Johnson, JJ.
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